Research Paper Series

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Departments: Tax & Law, GREGHEC (CNRS)

This complaint to the European Ombudsman by Access Info Europe and the HEC-NYU EU Public Interest Clinic alleges maladministration in the selection of judges for the Courts of Justice of the EU (CJEU). The complaint argues that the Council of Europe wrongly refused access to information on selection processes used for CJEU judges.For each judicial appointment to the CJEU, a special panel issues an opinion regarding the candidate’s suitability. This opinion is not made publicly available and is only shared with member states.Since 2014, the clinic has repeatedly sought access to the panel opinions. The underlying rationale for requesting access to these opinions is that the public has a right to expect a high degree of transparency about the professional competence of candidates during the judicial selection process.The Council denied access to the opinions arguing Regulation 1049/2001 (on public access to EU institutions’ documents) does not apply to the requested documents and that the procedure for appointing judges and Advocates General is not within the Council’s “sphere of responsibility.” The EU Ombudsman opened an investigation in 2015 and after examining the panel’s opinion she encouraged the Council to reconsider its disclosure policy.During this process, the Council announced that it had reassessed its practices and decided to apply Regulation 1049/2001 to documents held by its General Secretariat in relation to tasks supporting various intergovernmental bodies and entities, including the relevant panel.The Ombudsman welcomed the Council's policy change, and encouraged the complainants to file a new access request to the Council.In her final 2016 decision, the Ombudsman stated that data relating to the professional competence and activities of public figures, especially those appointed to a high level public posts, may not require the same level of protection as might apply to personal data in other circumstances.Access Info and the clinic therefore made a repeat request to the Council. A first reply from the Council, received on the same day as the Ombudsman published her final 2016 decision, only granted partial access to the documents and left aside all information relating to the suitability of the candidates – which is the subject matter of this complaint.The complaint follows on an earlier complaint submitted to the Ombudsman: http://ssrn.com/abstract=2636877.

Keywords: Judicial Transparency, CJEU, Court of Justice, EU Law, European Ombudsman, Access to Information, Transparency, Judicial, Judges


Departments: Tax & Law, GREGHEC (CNRS)

Young people entering the job market are in a precarious economic position. Across Europe, and in Belgium in particular, those who wish to enter into the professional world are faced with the de facto mandate that in order to gain experience and build the connections that will enable them to find paid professional work in the future, they must complete several internships. Yet many of these internships are unpaid or underpaid, forcing some young people to rely on their savings or their parents and shutting others out of the process entirely.The European Committee of Social Rights (the “Committee”) accepts collective complaints lodged by non-governmental organisations alleging violations of the European Social Charter (the “Charter”). The EU Public Interest Clinic prepared this draft Complaint for the non-profit organization European Youth Forum, alleging that unpaid internships in Belgium violate the Charter. Specifically, the provisions in Belgian law that enable unpaid internships, and the lack of enforcement of provisions that aim to curtail them, violate Articles 4, 7, and 10 of the Charter, which provide for fair remuneration, the protection of young people, and financial assistance for vocational training, respectively.

Keywords: Council of Europe, human rights, social rights, monitoring mechanism


Departments: Tax & Law, GREGHEC (CNRS)

The purpose of this legal memorandum is to provide advice to organisations and individuals interested in submitting a request for public access to documents under Regulation (EC) No 1049/01 (“Regulation 1049/01”) to the European Parliament for documents related to the spending of political groups covered by Budget Item 400 appropriations under Chapter 7.Requests for those documents may face rejection on grounds related to exceptions provided for in Regulation 1049/01, specifically those found in Articles 4(1)b, 4(2), and 4(3) pertaining to privacy and integrity of the individual, commercial interests, and institution’s decision-making process respectively.This legal memorandum addresses the applicability of those exceptions to the documents requested for potential use in a confirmatory request to be submitted to the European Parliament subsequent to the initial rejection in line with Article 7 of Regulation 1049/01. The memo also provides arguments for overcoming these exceptions in light of:1) recent developments in the case law of the Court of Justice of the European Union (“CJEU”) relating to the privacy exception; and2) the strict legal requirements for triggering the commercial interests and institutional decision-making exceptions.The last section of the memo is structured to provide draft responses to the denial of requests for documents and should be tailored to the specific situation in question.

Keywords: Open Government, Transparency, Participation, Civic Empowerment, Legitimacy, Accountability, Civil Society, European Union, Good Governance


Departments: Tax & Law, GREGHEC (CNRS)

This paper discusses the legal implications deriving from the choice of an interinstitutional agreement to regulate interest representation activities in the European Union. In particular, it focuses on whether this instrument may validly allow the European Parliament to impose a set of requirements on its Members (in relation to their free and independent mandate), the political groups, the intergroups and other informal groupings of Members, and on the accredited parliamentary assistants (APAs). It concludes that, given its legal status, the proposed IIA operationalises rather than extending the existing transparency obligations stemming from the Treaty and its requirements are proportionate to the aims pursued. As such it does not affect the free and independent mandate of Members as it is defined in the Members’ Statute nor it conflicts with the prerogatives of other internal actors. The proposed IIA intends to develop and complement obligations of primary law, such as the duty of openness and transparency that already govern the Statute and its interpretation, without compromising the substantive rights and obligations provided by the former. These obligations of primary law already put limits on the freedom and the independence of the Members enshrined in Article 2 (1) of the Statute as well as that of other internal actors. Additionally, the proposed mandatory Transparency Register also allows Members to easily identify the identity of interest representatives they meet, thus enhancing the Member’s ability to inform themselves.

Keywords: Open government, Transparency, Participation, Civic empowerment, Legitimacy, Accountability, Civil society, European Union, Good governance


Departments: Tax & Law, GREGHEC (CNRS)

The article outlines the options for collaboration between the European Union (EU) and the Open Government Partnership (OGP). The OGP accepts full participants (states), sub-national participants (pilot program), and observers. As of now, the OGP’s charter states that it only accepts “states” for full participant status. Three options are available to the OGP for accommodating the EU:1. Full participant status for the EU: the OGP would have to amend its Articles of Governance to allow non-state entities such as the EU to be participants by removing any mention of “government” of states, and replacing it with any government at the sub-national, national or supranational levels;2. Ad-hoc participation of the EU by creating a supra-national government program: the OGP would have to create a program tailored to the EU, which could be used as a model for allowing other supra-national bodies in the future. If option 2 is a success, the OGP could propose full participant status to the EU at that time;3. ‘Observer status’ for non-state entities with the EU as an observer: the OGP maintains the status quo by enabling non-state actors to obtain observer status.The article also reviews the requirements for OGP membership, the competence of the EU to join, and the question of which EU institution would be responsible for negotiating OGP membership. The article concludes by analysing how the EU would formalise its commitment to the OGP through an Inter-Institutional Agreement.

Keywords: Open Government, Transparency, Participation, Civic Empowerment, Legitimacy, Accountability, Civil Society, European Union, Good Governance


Departments: Tax & Law, GREGHEC (CNRS)

This study assesses the legal feasibility of a EU instrument that would impose mandatory human rights due diligence (“HRDD”) requirements on companies in the garment and textile sector. The proposal serves as an example of a sector-specific approach to HRDD requirements, and could be modified to develop similar proposals in other sectors. The study also illustrates the differences between a sector-specific and a cross-sectoral approach by highlighting the implications of each in the following areas: legal bases, personal scope, and requirements and enforcement.

Keywords: business and human rights, EU law, corporations, corporate responsibility, human rights due diligence


Departments: Tax & Law, GREGHEC (CNRS)

This Memorandum to the European Commission presents our professional opinion on the legal and ethical issues arising from the appointment of the former President of the European Commission Jose Manuel Barroso as non-executive chairman and director of Goldman Sachs. We identify a number of flaws of the Opinion of the Ad Hoc Ethical Committee which considered the issue and offer our own analysis of applicable law and the action the Commission is required to take. In our view, the Opinion represents a case of maladministration, on the ground of which it should have been set aside by the Commission in unequivocal terms. On our own analysis, Mr. Barroso’s acceptance of his new appointment was ethically inappropriate and, therefore, a violation of TFEU. Further we argue that the Commission has powers to take remedial action and is legally obliged to act to enforce the EU law and to protect the interests of the EU and its reputation. We show that, contrary to most comments in the media, the expiry of the eighteen months ‘cooling-off’ period does not put Mr. Barroso on the right side of the law, and does not preclude the obligation of the Commission to take remedial action.

Keywords: Barroso; Barrosogate; Ad Hoc Ethical Committee; European Commission; European Union


Departments: Tax & Law, GREGHEC (CNRS)

The 2015 reform of the EU’s court system will go down in history as the most radical transformation of the EU judicial architecture since the establishment of the General Court in 1989. It doubles the number of General Court judges but also dissolves the Civil Service Tribunal. This article offers a critical assessment of these two major, structural changes, addressing both the process by which they were adopted and their overall merits. After providing a detailed examination of the reform’s tortuous legislative history and highlighting its unique underlying procedural feature – with the Court itself initiating the process – this article identifies and systematizes its major shortcomings. It criticizes the underlying diagnosis and the cure administered. It concludes by presenting this reform process as a missed opportunity to address, in a more holistic manner, the pressing non-docket related challenges facing the EU judicial system, in particular, to reform a governance structure which is no longer fit for purpose considering the massive transformation of the EU judicial branch since 1951

Keywords: Judicial Governance, Openness, Transparency, Legitimacy, Accountability, European Union, Good Governance


Departments: Tax & Law, GREGHEC (CNRS)

Scotland is the first jurisdiction in the world to introduce a minimum price per unit of alcohol to reduce consumption. The relevant industry did not hesitate to challenge this new alcohol control policy before courts. The ensuing judgment contains a wealth of insights stemming from regulatory autonomy to proportionality review. What is the role of a national court in the review of national measures restricting free movement? In particular, how should it review the proportionality of those measures when adopted on public health grounds, and on the basis of what evidence? What is the burden of proof that the relevant Member State must discharge? Those are essentially the questions referred by a Scottish court to the Court of Justice when called upon to determine the compatibility with EU law of Minimum Unit Prices for alcohol introduced by the Scottish Government. Although rather recurrent in the Court’s free movement case law, the question of the standard of review, and corresponding burden of proof epitomises the struggle currently faced by national courts in striking the right balance between the proper functioning of the market and due recognition and protection of national regulatory autonomy. As such, this preliminary reference offered an opportunity to address “the information gap on what the Court of Justice expects defendant States to establish” in order to justify their measures under the proportionality stages of free movement analysis. But there is more. This case also raises deeper epistemic and methodological questions faced by any court of law when asked to review the proportionality, and in particular the necessity, of an individual policy intervention that belongs to a wider ‘political strategy’. Indeed, those strategies – as exemplified in the present case by the Scottish policy designed to combat the devastating effects of alcohol – generally entail the enactment of a full ‘regulatory mix’ of policy interventions. In those circumstances, how can we pinpoint the effect of a given policy option when it is part of a set of measures? How can we distinguish the effect, in terms of health gains deriving from a drop in alcohol consumption, to be ascribed to the introduction of MUP when such a measure coexists with other measures (more than 40 in Scotland) that have been introduced? And what when the contested measure has never been tested before? While this judgment confirms the gradual empirical turn made by the Court in its own review of the proportionality of national restrictive measures, it also provides some pragmatic guidance on how national courts may realistically engage in that review. Given the growing number of Member States ready to experiment with new policies aimed at tackling inter alia lifestyle risk factors, such as tobacco use, harmful consumption of alcohol and unhealthy diets, this appears as welcome development. Ultimately, the ensuing number of national restrictive measures of trade enacted on public health grounds, such as the UK standardised packaging for cigarettes, its sugar tax or the Hungarian ‘fat tax’, is set to put to test the Court’s approach towards both the qualification of those measures as restrictions and their justification under EU law.

Keywords: EU law, proportionality, tax, minimum unit pricing, alcohol, lifestyle, NCD, precautionary principle, risk regulation, judicial review


Departments: Tax & Law, GREGHEC (CNRS)

One of the major merits of the TTIP leaks has been to highlight the underlying information asymmetry characterising the on-going TTIP negotiations. By systematically releasing its position papers before each negotiation, the EU actual disclosure policy contributes to a permanent yet overlooked information imbalance between the EU and its trading partner(s). The ensuing asymmetry does not only alter the overall negotiating environment, but also how the media, academics, and, in turn, the public actually perceive it. Moreover, it generates many other information asymmetries within the EU itself: that between the negotiators and the elected representatives, that between corporate and civil society interest groups, and eventually between the ‘TTIP circus’ and the general public. If the negotiators themselves have hijacked the rhetoric of fact-checking, academics have not yet had their chance to contribute to the discussion. As a result, only the EU positions have been studied, criticized and closely debated, with the US negotiating positions remaining largely a mystery. After briefly presenting the how’s of the TTIP leaks, this opening piece examines the what’s and why’s behind this unprecedented revelation of negotiating texts. It is against this backdrop that the other contributors to this symposium explore which are the most immediate consequences of the TTIP leaks on the on-going negotiations and future agreement.


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